# Burgoon v. Zoning Hearing Board

> Commonwealth Court of Pennsylvania · May 26, 1971 · 2 Pa. Commw. 238

URL: https://www.frixlaw.com/law-library/cases/6360647

## Case

- **Full name:** Carroll F. Burgoon, M. D., and Jane S. Burgoon, M. D., His Wife, and Burgoon Antiques, Inc. v. Zoning Hearing Board of Charlestown Twp., Chester County
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** May 26, 1971
- **Citations:** 2 Pa. Commw. 238; 277 A.2d 837; 1971 Pa. Commw. LEXIS 439
- **Precedential status:** Published
- **Opinion:** Dissent by Mencer
- **Judges:** Bowman, Crumlish, Crumltsh, Himself, Kramer, Manderino, Mencer, Rogers, Wilkinson
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6360647

## Opinion text

Dissenting Opinion by
Judge Mencer:
I respectfully dissent for two reasons.
First: I agree with the lower court’s conclusion as expressed in its opinion as follows: “Considering the whole scope of the ordinance we hold that Burgoons’ and Burgoon Antiques, Inc.’s use of their lands is not an educational use within its provisions; that on this record its operations as a whole are not a charitable or philanthropic use; that on the contrary, such use is a commercial one and not permissible under special exception.”
Second: When the Supreme Court of Pennsylvania refused the appellants’ application under its Rule 68% for a special allowance of appeal, the case was concluded and the lower court’s order became absolutely final. The appellants should not now be able to reopen and retry the original case under a collateral proceeding dealing with a cease and desist order issued by the Zoning Board. Neither should changed circumstances which are the result of appellants’ efforts and activities be sufficient to breathe new life into a case that has ended in accordance with normal legal procedures. Even if we now would assume that new factors and circumstances would merit the granting of a special exception to the appellants, the method of making such a determination would be a new request to the Board for a special exception, not a further review of a proceeding that has been legally concluded.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6360647. Public record. Not legal advice.